“Public safety” stop was extended elsewhere, and that showed it was invalid

Officer’s actions in extending a “public safety” stop to other things showed the stop was excessive. State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007):

Here, the district court determined that Doudican’s stop was not primarily motivated by community caretaking concerns. The district court noted that Doudican did not immediately stop the motor home as soon as he caught up to it, but instead Doudican followed the motor home for about 1 mile before he stopped the Marxes for the traffic infraction. Also, Doudican testified he was looking for a violation to stop the motor home, and Doudican clearly testified the real reason for the stop was the perceived traffic infraction. Substantial competent evidence supports the district court’s decision that Doudican’s primary motivation in stopping the motor home was due to a traffic infraction, not to return the hubcap.

Doudican’s motivation aside, the Marxes argue that losing a hubcap is not a sufficient reason to justify a public safety stop. We agree. Although the Gonzales court upheld the initial vehicle stop for public safety reasons, the court expressly rejected the open fuel hatch as justification for the stop. The court stated: “There is no dispute that the open hatch cover was not perceived as a safety problem; even [the officer] referred to it as a ‘courtesy’ to alert the driver to that condition. It was the bouncing tire that was the alleged safety concern.” 36 Kan. App. 2d at 453.

Here, under the initial prong of the test enunciated in Gonzales, there were no facts that suggested to Doudican that a citizen was in need of help or was in peril at the time of the stop. Doudican already had the hubcap in his possession, and there was only a minimal risk that the motor home might lose other hubcaps on the highway in such a manner as to endanger the public. Consistent with the court’s determination in Gonzales that the open fuel hatch did not implicate public safety, Doudican’s return of the hubcap more closely resembled a “courtesy” to the Marxes rather than a concern for public safety. We conclude as a matter of law that the stop of the Marxes’ motor home was not warranted under a public safety rationale.

Police came to do a knock-and-talk at defendant’s apartment and misrepresented themselves as “maintenance.” Defendant told them to come back. Then they identified themselves and he opened the door and they asked to come in. He backed up and let them in. The argument was apparently framed as lack of probable cause for a knock-and-talk and not as a coercive atmosphere. [Whether it would have succeeded argued otherwise is hard to tell.] United States v. Valensia, 2007 U.S. Dist. LEXIS 79338 (N.D. Ill. October 11, 2007):

In the present case, the evidence shows that the officers knocked three times on Valensia’s apartment door. When they first identified themselves as “maintenance,” Valensia or someone else inside asked them to come back at a later time. When the officers responded by saying that it would only take a short time, Valensia then willingly opened the door. When he did, he was facing a uniformed police officer and another man with a badge on his chest. At this point, the officers requested permission to enter the apartment. There is no evidence that the officers used any intrusive measures, or forced their way in, or made any demands whatsoever. When the officers asked Valensia if they could come into the apartment, the uncontroverted evidence is that he backed up slightly, opened the door wider, and gestured with his hand for them to enter. While Valensia did not testify at the suppression hearing, McCain and Sellers did, and neither of them testified that the officers forced their way into the apartment or demanded to be let into the apartment. Therefore, Valensia’s argument that the officers did not have probable cause to approach his apartment or to conduct a “knock and talk” is without merit.